United States v. Alexander E. Lewis, Jr.

447 F.2d 1262

• Court: Court of Appeals for the D.C. Circuit
• Decided: September 24, 1971
• Docket: 24798_1
• Status: Published

Opinions

MacKINNON, Circuit Judge:

Appellant was tried on two counts of second degree burglary but found guilty of the lesser included offense of unlawful entry in violation of D.C.Code § 22-3102(1967). While second degree burglary is a felony,¹ unlawful entry is a misdemeanor punishable by a fine not exceeding $100 or imprisonment in the jail for not more than six months or both in the discretion of the court. Following his conviction the trial court sentenced appellant under the Federal Youth Corrections Act,² 18 U.S.C. § 5010(b) which provides:

If the court shall find that a convicted person is a youth offender, and the offense is punishable by imprisonment under applicable provisions of-law other than this subsection, the court may, in lieu of the penalty of imprisonment otherwise provided by law, sentence the youth offender to the custody of the Attorney General for treatment and supervision pursuant to this chapter until discharged by the Division as provided in section 5017 (c) of this chapter. * * *

18 U.S.C. § 5010(b). (Emphasis added.)

In sentencing appellant under the Youth Corrections Act the court relied upon that provision of the D.C.Code authorizing imprisonment for not more than six months as satisfying the requirement of the Youth Corrections Act that the offense be “punishable by imprisonment under applicable provisions of law other than this subsection * * However, prior to the date of appellant’s sentencing he had been confined, in connection with the offense and acts for which the sentence was imposed, for a total of over seven months in the D.C. jail as follows:

October 7, 1969 — November 18, 1969

February 20,1970 — March 4,1970

May 11,1970 — October 12,1970 ³

Appellant contends that the Government is required to credit this presentence jail time against the six months maximum imprisonment authorized by D.C.Code § § 22-3202 (1967) in such manner as to take away the ability of the court to impose a sentence under the Youth Corrections Act. In other words, he contends that since he had been detained in the D.C. jail for a period in excess of the maximum sentence permitted by law by the D.C.Code for the offense of unlawful entry for which he was convicted, that he had fully served the maximum statutory sentence and hence could not be further incarcerated under the Youth Corrections Act. We do not so interpret the applicable statutes.

The statute providing for crediting pre-sentence jail time, 18 U.S.C. § 3568, provides as follows:

The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. As used in this section, the term “offense” means any criminal offense, other than an offense triable by court-martial, military commission, provost court, or other military tribunal, which is in violation of an Act of Congress and is triable in any court established by Act of Congress.

If any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention.

No sentence shall prescribe any other method of computing the term. [Emphasis added.]

The clear language of 18 U.S.C. § 5010(b) authorizes the court where a youth offender is convicted of an “offense * * * punishable by imprisonment under applicable provisions of law other than this subsection” to impose a sentence under the Youth Corrections Act.⁴ Since appellant satisfies all these requirements, the court was authorized to impose a Youth Corrections Act sentence.⁵

That appellant previously had been charged with a felony and confined in jail awaiting trial for acts arising out of said offense more than the maximum period of imprisonment to which he might have been sentenced had the court elected to impose sentence under the D.C. Code (rather than the Youth Corrections Act) does not prohibit the court from imposing a Youth Corrections Act sentence. From the moment appellant committed the offense he was always subject upon conviction of the felony, or any lesser included misdemeanor, to one of two possible sentences, one under the D.C.Code or one under the Youth Corrections Act. 18 U.S.C. § 3568 only requires that the defendant receive “credit toward service [of whatever] sentence was imposed” for his pre-sen-tence jail time.

In providing that the “Attorney General” (not the court) is the person to give credit toward service of his sentence, the statute makes it plain that it does not in any way affect the right or duty of the court to impose sentence under the D.C.Code, the Youth Corrections Act or any other applicable statute. The computation of the sentence is an administrative not a judicial responsibility.⁶ The mandate and operative scheme implicit in the statute provides that the available credit shall be applied after whatever sentence is imposed and not before sentence. Thus, the court must first impose sentence before any “credit” may be realized.⁷ If the defendant were acquitted, no credit would ever be realized and the fact that he is entitled to a credit on a sentence after it is adjudged does not operate to prohibit the court from imposing sentence or to reduce the sentence that it might adjudge. Thus we hold on the facts of this case that 18 U.S.C. § 3568 does not prohibit the imposition of the Youth Corrections Act sentence.⁸

Affirmed.

1 . D.C.Code § 22-1801 (b) (Supp. IV, 1971) provides in pertinent part:

Burglary in the second degree shall be punished by imprisonment for not less than two years nor more than fifteen years. (81 Stat. 736)

2 . The Youth Corrections Act is applicable in the District of Columbia. 18 U.S.C. § 5024.

3 . Apxiellant was originally released on bond, then rearrested on other charges. Following the dismissal of the other charges he was again released on bond on March 4, 1970, but this bond was revoked on May 11, 1970.

4 . The Youth Corrections Act applies generally to sentencing of “youth offenders” unless specifically excluded. Thus, in the District of Columbia Court Reform and Criminal Procedure Act of 1970 (P.L. 91-358, July 29, 1970, 84 Stat. 473), Congress provided by specified language that the Youth Corrections Act would not be apxilicable to a youth offender convicted of a second offense which constituted a “crime of violence while armed” and thus left the Youth Corrections Act applicable to first offenses even though the definition of a “crime of violence while armed” included murder. D.C.Code §§ 22-3201, 22-3202(d) (1).

5 . D.C.Code § 22-3202 (1967) ; 18 U.S.C. § 5010(b) ; United States v. Fort, 143 U.S.App.D.C. 255, 272, 443 F.2d 670, 687 (1970), cert. denied, 403 U.S. 932, 91 S.Ct. 2255, 29 L.Ed.2d 710 (1971).

6 . Bostick v. United States, 409 F.2d 5 (5tli Cir.), cert. denied, Lainhart v. United States, 396 U.S. 890, 90 S.Ct. 180, 24 L.Ed.2d 164 (1969) ; Lee v. United States, 400 F.2d 185, 189 (9th Cir. 1968).

7 . Under the claim of “harmonizing” the two statutes, the dissent would reverse the order in which their language indicates they were intended to operate and then do violence to the Youth Corrections Act by excluding from its coverage an entire group of youth offenders who are the very persons most in need of its benefits, i. e., those convicted of misdemeanors who by the nature of the offense with which they were charged, or their prior conduct, were required to be incarcerated a substantial period of time prior to trial. The dissent argues that such result would be rare. That may be, but that is no reason to allow it at all. These are the worst offenders and we should not resort to a construction of the statute contrary to its terms to achieve a result that does violence to its purpose. The result sought by the dissent would also prevent the youth offender from having his conviction set aside under 18 U.S.C. § 5021 which provides:

(a) Upon the unconditional discharge by the division of a committed youth offender before the expiration of the maximum sentence imposed upon him, the conviction shall be automatically set aside and the division shall issue to the youth offender a certificate to that effect.

(b) Where a youth offender has been placed on probation by the court, the court may thereafter, in its discretion, unconditionally discharge such youth offender from probation prior to the expiration of the maximum period of probation theretofore fixed by the court, which discharge shall automatically set aside the conviction, and the court shall issue to the youth offender a certificate to that effect.

While a youth offender at the time of his sentence may value his liberty more than the possibility of a clean record, the latter, if achieved, may be of greater permanent value to him. The result sought by the dissent would also discriminate against youth offenders who serve their time after sentence.

8 . Since it is not raised by the instant record and was not argued on this appeal, we do not decide whether 18 U.S.C. § 3568 requires the Attorney General to credit pre-sentence jail time of a youth offender sentenced under the Youth Corrections Act against the four and six year limits prescribed by 18 U.S.C. § 5017(c) :

A youth offender committed under section 5010(b) of this chapter shall be released conditionally under supervision on or before the expiration of four years from the date of his conviction and shall be discharged unconditionally on or before six years from the date of his conviction.

Cf. Viggiano v. United States, 274 F.Supp. 985 (S.D.N.Y.1967).